Under the Trump administration’s recent executive order on interior enforcement, state and local police are being pressured to work closely with immigration officers to carry out sweeping immigration enforcement actions. Advocates fear that this approach will have devastating consequences for immigrant communities and undermine public safety and trust between these communities and police. In addition, basic fairness and due process are at stake. To protect the rights of clients caught in the enforcement dragnet, immigration lawyers should consider filing motions to suppress — a tactic long used in criminal trials to prevent the use of unlawfully obtained evidence against a defendant.

The use of motions to suppress in immigration cases figures prominently in a case pending before the Fourth Circuit Court of Appeals, Ferino-Sanchez v. Sessions.  The petitioner, Jairo Ferino-Sanchez, was arrested in May 2009 by the Maryland Transportation Authority Police following a traffic stop, during which a man named Jose Badillo was pulled over while driving a friend’s car. Badillo was driving a car that belonged to Juventino Davila, a mutual friend of his and Ferino-Sanchez. The arresting officer, Peter Acker, instructed Badillo to contact Davila to come retrieve his car. Ferino-Sanchez drove Davila, the owner of the car, and another companion to the site of Badillo’s traffic stop.

Prompted only by the fact that Davila, Ferino-Sanchez and their companion were speaking Spanish, Officer Acker refused to return Davila’s keys and engaged in “increasingly ‘aggressive’ questioning” about the three men’s immigration status. Acker then ordered Ferino-Sanchez out of the car; searched, handcuffed, and detained him; drove him to a police station; and ultimately handed him over to Immigration and Customs Enforcement officers, who put him into removal proceedings.

Under well-established Fourth Amendment law, police may not detain an individual for questioning without reasonable suspicion that he is engaged in criminal activity, and may not carry out an arrest without probable cause that a crime has been committed.  In this case, however, Maryland police officers detained and arrested Mr. Ferino-Sanchez based solely on their suspicion of unlawful presence in the United States — a civil immigration violation — in blatant violation of the Fourth Amendment.

The Board of Immigration Appeals did not dispute that Ferino-Sanchez’ arrest violated the Fourth Amendment, but found no need to suppress the unlawfully obtained evidence against him because the Fourth Amendment violation was not “egregious.”  That standard comes from a 1984 case called INS v. Lopez-Mendoza, in which the Supreme Court suggested that evidence obtained by federal immigration officers might be subject to suppression in immigration court proceedings if obtained through “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness.”  Like many other courts, the Fourth Circuit (where Mr. Ferino-Sanchez’ case is pending) has adopted that standard.

In an amicus brief filed earlier this week in support of Mr. Ferino-Sanchez, the American Immigration Council, the National Immigration Project of the National Lawyers Guild and the ACLU of Maryland, argued that any Fourth Amendment violation by state and local officers — not just egregious Fourth Amendment violations—should require the suppression of evidence, which is the same standard that applies in the criminal justice arena.

Among other reasons, the brief explains that most state and local officers do not receive federal immigration training, thereby increasing the risk that they will commit constitutional violations in the course of immigration enforcement. Moreover, unlike federal immigration officers, most state and local officers are not bound by regulations that limit their authority in the immigration context, and are not subject to federal supervision or discipline. While these safeguards do not always prevent federal immigration officers from engaging in unconstitutional conduct, they do not even apply to state and local officers.

The involvement of state and local law enforcement officials in immigration enforcement will likely increase under the Trump Administration.  By suppressing evidence obtained through any Fourth Amendment violation, whether egregious or not, courts will help to ensure that state and local law enforcement officers demonstrate the necessary respect for constitutional rights.